Ismaili v Employers Mutual NSW Limited

Legislation Cited: Workers Compensation Act 1987 (NSW), ss 151D, 151DA, 151H

Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Gower v State of NSW [2018] NSWCA 132
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2001] NSWCA 442

Category: Procedural rulings

Parties: Feta Ismaili (Plaintiff/Applicant)
Employers Mutual NSW Ltd (Defendant/Respondent)

Representation: Counsel:
Mr J Dodd (Plaintiff/Applicant)
Mr F Doak (Defendant/Respondent)
Solicitors:
NSW Compensation Lawyers (Plaintiff/Applicant)
Hicksons Lawyers (Defendant/Respondent)

File Number(s): 2024/439379

Publication restriction: Nil

JUDGMENT

The Application Before the Court

1. The plaintiff brings an application for leave, nunc pro tunc, pursuant to s 151D of the Workers Compensation Act 1987 (NSW), to commence and maintain these proceedings more than three years after the date of the injury upon which he sues.

2. In his Statement of Claim, the plaintiff alleges injury suffered on 4 March 2021 in the course of his employment with Plus Form Aust Pty Ltd (Plus Form). Because Plus Form is said to be in liquidation, the plaintiff sues its workers compensation insurer. [1]

3. The plaintiff alleges that on the day in question, when working as a formworker with Plus Form, he suffered injury to his neck, lower back and right shoulder whilst attempting to remove a formwork component, known as a “Z-bar”, which had become stuck in concrete. It is alleged the plaintiff suffered what is described as a jolting injury, when a nut attached to the Z-bar snapped in the process of the plaintiff applying force to it. The plaintiff pleads a number of particulars of negligence which, in broad terms, involve failure to provide a safe system of work, failure to properly train and instruct the plaintiff, and vicarious liability for the employee responsible for the Z-bar becoming stuck in concrete.

4. It is not controversial that, when allowance is made for the periods when time does not run pursuant to s 151DA of the Workers Compensation Act, these proceedings were commenced about 12 weeks outside the three-year period prescribed in s 151D.

5. Section 151D falls into that category of limitation provision which provides the Court with a discretion to forestall the operation of the prescribed period. However, unlike some statutes, there is no prescription of the criteria to be considered in the exercise of that discretion. Section 151D simply provides that a claim for work injury damages cannot be commenced more than three years after the date of injury “except with the leave of the court”.

6. There have been a number of authorities over the years dealing with the considerations which inform the application of s 151D. Practical guidance on dealing with the task at hand is provided by Basten JA in Gower v State of NSW [2018] NSWCA 132 at [4], where his Honour isolated three propositions an applicant must establish in order to obtain leave, namely:

7. That there is a sufficient and satisfactory explanation for each period of delay.

8. That there is a reasonably arguable cause of action against the defendant.

9. That the conduct of the trial will not cause the defendant significant prejudice such as to render the trial unfair.

10. The Court was assisted in the running of the present application by experienced counsel who isolated and focused on the real issues.

11. In addressing the propositions outlined by Basten JA in Gower, Mr Doak, who appeared for the defendant, appropriately accepts that the plaintiff has provided a satisfactory explanation for the delay in commencing these proceedings and, for the purposes of this application, that the plaintiff has a reasonably arguable case in negligence.

12. Accordingly, the issue for my consideration has distilled into whether the plaintiff has established that the conduct of the trial will not cause the defendant significant prejudice such as to render the trial unfair.

The Evidence

10. The evidence relevant to the determination of that issue can be summarised as follows:

11. The defendant’s solicitor, Ms Tancred, deposes to the fact that on 10 April 2024, after receiving particulars from the plaintiff’s solicitors on 3 April 2024, she commissioned investigators to explore the circumstances of the accident. Ms Tancred instructed the investigators to interview and obtain statements from co-workers Robert Younan and Safwan Zreika or any other witnesses to the events leading up to and following the alleged incident. The investigators were also requested to obtain as much detail as possible about the system of work and instructions provided to the plaintiff.

12. On 19 June 2024 the investigators provided a report to the defendant’s solicitors in which they advised:

(a) Plus Form went into liquidation on 22 October 2022. (b) They had made contact with a previous supervisor of the plaintiff at Plus Form by the name of “Lee” who told the investigators that the owner of Plus Form, Jason Andrijic, was now operating another nominated company. (c) They had contacted and spoken with Mr Andrijic who, although saying he would email information, had not been heard from again, despite attempts to contact him. (d) Searches were conducted in relation to Robert Younan and Safwan Zreika, however neither could be contacted on telephone numbers which had been unearthed. (e) They required instructions on how they should proceed in the circumstances.

3. There is no evidence that matters have been taken any further with those investigators.
4. The plaintiff’s solicitor, Mr Macri, has provided an affidavit in response to that of Ms Tancred. Mr Macri deposed to calling witnesses on mobile telephone numbers which are detailed in the affidavit. The outcome of Mr Macri’s enquiries are as follows:

(a) On 4 March 2025 Robert Younan told Mr Macri he had no recollection of the plaintiff, but did recall working at the site where the plaintiff alleges he was injured. He said that “Built” [2] would definitely have a record, telling Mr Macri, “If you call the Built office, whenever an injury happens, we record it and there would be paperwork for these things”. (b) On 4 March 2025 Safwan Zreika told Mr Macri he recalled the plaintiff and was aware the plaintiff had “hurt his neck and his back when he was trying to remove the Z bar from the concrete”. Mr Zreika also recalled the plaintiff telling both he and Lee Feva, the safety officer, about the injury. (c) On 4 March 2025 Mr Andrijic told Mr Macri he remembered the job and the site and that it was a “messy job”. However, he could not remember the plaintiff. He confirmed that the site was a “Built job” and he thought “Built would have paperwork for that”. (d) On 4 and 5 March and 12 May 2025, Mr Macri rang what he believed to be the number for Lee Feva. On each occasion the call was unanswered and went through to voicemail with the message, “Hi, you’ve reached Lee, please leave your number and I’ll get back to you”. Mr Macri left a message each time but has not received a response.

5. It is apparent from Mr Macri’s evidence that Lee Feva is the person identified as “Lee” who was spoken to by the defendant’s investigators. [3]

Relevant Considerations

11. For the reasons explained by Ipp AJA in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2001] NSWCA 442 at [87], the general question to be answered in the application of s 151D of the Workers Compensation Act is what is fair and just, or what does the justice of the case require.

12. As Mr Doak emphasised in his written submissions, Ipp AJA was of the view that one must evaluate the justice of the case by reference to the rationales of the limitation period that has barred the action, including four broad rationales for the enactment of limitation periods, discussed by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 552. Those rationales, in summary, are that evidence is likely to be lost over time, it is oppressive to defendants to allow actions to be brought long after relevant events, it is desirable that people can order their affairs on the basis that the claim can no longer be made against them, and finally, it is in the public interest that disputes be settled as quickly as possible.

13. Those considerations must be kept firmly in mind when determining questions of prejudice thrown up by the present case.

14. As the parties recognise, prejudice falls, broadly speaking, into two categories, namely presumptive prejudice and actual prejudice. Presumptive prejudice largely involves the potential for compromise of a fair trial by the effluxion of time, with associated dimming of memory, and the forensic challenges of marshalling evidence and following chains of enquiry when the trail may well have gone cold.

15. These factors are a function of delay. In general terms, they become more acute as time passes. Of course, presumptive prejudice will be more significant in some cases than others. For example, prejudice occasioned by the passing of time is likely to be greater in a case involving witnesses relying on memory of controversial, undocumented conversations than it will be in a case where the answer to the dispute lies largely in the contents of documents which have been preserved.

16. Actual prejudice, by its nature, is case sensitive and involves prejudice arising out of a specific compromise of the defendant’s ability to try the issues in dispute. Typically, this will involve the unavailability of, or inability to locate, witnesses or documents. Obviously enough, the forensic significance of the unavailable evidence will be important when assessing the impact of actual prejudice.

17. In the present case, Mr Doak argues that the plaintiff has not satisfied the onus resting upon him to establish that it is fair and just for the defendant to face a trial in the circumstances. In short, it is said that in addition to a pervading presumptive prejudice, the plaintiff’s evidence does not go far enough to establish that the actual prejudice suffered by the defendant will not preclude a fair trial.

18. It is contended that the evidence of Mr Macri falls short of discharging the onus on the plaintiff. The defendant’s enduring prejudice is said to be reflected in the fact that Mr Younan could not remember the plaintiff, nor could Mr Andrijic. Whilst Mr Zreika could remember the plaintiff, it is argued the conversation deposed to by Mr Macri did not shed any meaningful light on whether Mr Zreika could address the various particulars of negligence pleaded against the defendant. Additionally, the defendant argues Mr Feva not having responded to enquiries, leaves open the question of whether, and if so, to what extent, he can provide meaningful evidence.

19. Additionally, the defendant relies on the fact that the plaintiff has not led any evidence as to whether follow up enquiries were made with Built and whether any relevant documents relating to the plaintiff’s injury are in its possession. Similarly, it is contended the plaintiff has not adduced any evidence to establish whether the liquidator of Plus Form has relevant records.

20. Mr Dodd, who appeared for the plaintiff, submits that the onus on the plaintiff has been discharged in the circumstances. It is argued that Plus Form’s workers compensation insurer would have been on notice from an early stage that the plaintiff had suffered significant injuries and thus had the opportunity to investigate the plaintiff’s claim from early on. Mr Dodd submits that the defendant’s factual investigation provides little insight into what the investigators did in their search for witnesses and, as the affidavit of Mr Macri makes clear, contact with most of them was easily achieved.

21. Before me, Mr Dodd argued that, in circumstances where the plaintiff has shown there are witnesses readily available and highlighted clear potential lines of enquiry with Built, the onus had effectively shifted to the defendant to show why there was actual prejudice such as to deprive the defendant of a fair trial.

22. One must approach the question of onus with a careful eye on the concepts of fairness and justice of which the authorities speak.

23. Whilst the effects of presumptive prejudice should not be underestimated, there is no indication that such prejudice in the present case rises beyond that which generally accompanies the fact that litigation is conducted some time after the cause of action arises. The legislature contemplates that, allowing for periods when time is suspended, a delay of three years in the commencement of proceedings is acceptable. In this case the claim for damages was notified within the three-year limitation period and the proceedings commenced soon after the period expired. In terms of presumptive prejudice, the effects of time do not, on the face of it, appear to have increased the forensic challenges for the defendant to a level where a fair trial could not be had.

24. Conceptually, when considering the onus resting on a plaintiff in terms of actual prejudice, I consider a plaintiff is not required to establish there is no actual prejudice in a vacuum. Generally speaking, a defendant must, at the very least, flag the actual prejudice it contends for, leaving it for the plaintiff to deal with that assertion as he or she sees fit, usually by adducing some evidence on the point.

25. In the present case, the defendant, in the affidavit of Ms Tancred, flagged the actual prejudice complained of, namely an inability to locate relevant witnesses and, in terms of her letter of instruction to the investigators, a lack of information about the system of work, instructions provided, and supervision of the plaintiff.

26. The defendant says the affidavit of Mr Macri goes some way, but not far enough to establish that the defendant can have a fair trial, in light of the difficulties encountered by its investigators.

Consideration

27. I consider the plaintiff has done enough to establish that a fair trial is available in the circumstances. This is because:

28. The plaintiff has demonstrated that the witnesses referred to by the defendant’s investigators are, in fact, available and has provided contact numbers for each of them.

29. Those witnesses are compellable and any lack of cooperation on their part is a forensic fact of life in litigation and cannot, on the face of it, be said to be a product of delay in the commencement of these proceedings.

30. Save for Lee Feva, the plaintiff has provided details of the conversations with the witnesses, and with that, an insight into the evidence they can potentially give.

31. Although the plaintiff’s solicitor was unable to speak with Mr Feva, that witness had been spoken to by the defendant’s investigators. However, for whatever reason, the investigators either didn’t ask or didn’t record what Mr Feva had to say about the plaintiff’s allegations. This cannot be laid at the feet of the plaintiff.

32. The plaintiff has established that Built is a potential source of relevant information, something which the defendant was, in any event, on notice of from the plaintiff’s workers compensation claim form.

33. Absent evidence to the contrary, there is no reason to think the defendant is not able to access relevant business records held by the liquidator or administrator of Plus Form which, in the normal course of events, one would expect to include documents from the time in question.

34. Contrary to the submission put on behalf of the defendant, in my view the plaintiff did not have to go further and obtain statements or more detail from the witnesses spoken to. The point is the witnesses are available and so, absent some reason to think otherwise, the defendant has on the face of it, suffered no actual prejudice by reason of the delay in terms of having access to those witnesses.

35. Whilst Mr Younan and Mr Andrijic could not remember the plaintiff, it is not possible, on the evidence, to know if that is a product of the lapse of time. However, neither Mr Younan nor Mr Andrijic are suggested, in the workers compensation claim form or the plaintiff’s statement, [4] to have been a direct witness to the incident. Accordingly, their evidence would be expected to go to matters relevant to conditions on the site and the system of work. It is clear from Mr Macri’s affidavit that both witnesses can clearly remember the job. As such, the defendant has access to witnesses who, on the face of it, are able to address the various matters the investigators were commissioned to explore.

36. In Mr Zreika, the defendant has access to the witness to the incident nominated in the workers compensation claim form and the plaintiff’s statement, who on the face of it, has a good recall of events. It is not challenged that Mr Zreika, in the conversation recounted by Mr Macri, said he remembered the plaintiff clearly and recounted the fact that the plaintiff hurt his neck and back when trying to remove the Z-bar from the concrete.

37. Otherwise, having demonstrated that Built is a potential source of relevant information, the plaintiff has added to the store of material establishing that the defendant has not suffered significant prejudice in the conduct of the litigation. In discharging the onus to obtain leave under s 151D, I do not consider it necessary in the circumstances for the plaintiff to go further and exclude the possibility, unexplored by the defendant, that there may be some compromise on the availability of information from Built.

38. Similar comments apply to suggestions that the plaintiff was required to make proactive enquiries of Plus Form’s liquidator or administrator.

39. Ultimately, there is no evidence from the defendant undermining the conclusions to be drawn from the evidence advanced on behalf of the plaintiff.

40. In the circumstances, I consider the plaintiff has established that any presumptive or actual prejudice which the defendant has suffered is not such as to preclude a fair trial. Of course, a fair trial doesn’t mean a perfect trial. However, experience suggests that there are few, if any, perfect trials and forensic challenges may be found in even straight-forward cases. Any imperfection here does not, in my view, rise to a level which amounts to relevant unfairness.

41. For those reasons, in the exercise of my discretion, I consider it appropriate that the plaintiff be given the leave he seeks, pursuant to s 151D of the Workers Compensation Act.

Costs

36. In argument it was accepted that, as the plaintiff submits, the application in question is an “ancillary proceeding” such that the Court has power to make an order for costs, unencumbered by the restrictions imposed by the relevant workers compensation regulations.

37. The plaintiff seeks an order that the defendant pay his costs on the basis that costs ought follow the event. The defendant sought an order, if unsuccessful, that each party ought bear its own costs of this application in the circumstances.

38. Costs are of course discretionary and ordinarily should follow the event.

39. This case falls into a familiar category where the plaintiff was effectively unable to comply with the time limits imposed on him because he was unable to crystallise his cause of action by the satisfaction of the relevant level of permanent impairment required under s 151H of the Workers Compensation Act until a time when the limitation period was bound to expire. Really, neither the plaintiff nor the defendant bear responsibility for costs in the sense which would justify an order against them. The need for the application and the costs occasioned thereby are a product of the conduct of the litigation in the context of the prevailing statutory requirements.

40. In those circumstances, in my view, the appropriate order is that costs be costs in the cause.

Orders

41. Accordingly, I make the following orders:

42. The plaintiff is granted leave, nunc pro tunc, pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) to commence and maintain these proceedings.

43. The costs of this application are to be costs in the cause.

**********

Endnotes

The defendant contends that Plus Form is not in liquidation but is under external administration. However, nothing turns on this for the purposes of the present application.

“Built” is nominated in the plaintiff’s workers compensation claim form as the employer responsible for the workplace in question.

There is a correlation between the telephone number Mr Macri called for Lee Feva and the telephone number provided for “Lee” as the employer contact in the workers compensation claim form.

Annexure A to the plaintiff’s affidavit sworn 11 December 2024.